B.L.Yadav - (1.) WHETHER inaction or delay in arising industrial dispute by the workman can be condoned and whether Presiding officer of the Central Industrial Tribunal is entitled to substitute his own discretion, converting the punishment of dismissal from service, to that of withholding one increment of the workman and censure entry in the character Roll, are short questions that fail for determination in the present petition filed by the employer challenging the award dated 16th of November, i990 (Annexure No. 10 to the writ petition), seeking relief for issuance of a writ of Certiorari quashing the said award rendered under section 11 of the Industrial Dispute Act, 1947 (Compendiously the Act), whereby the petitioner has been directed to reinstate the workman, respondent no. 1, and the workman has been directed not to be paid any amount except subsistence allowance during period of suspension and the arrears of the back wages would be paid only after an affidavit was filed that workman was not gainfully employed any where during the period he was out of the service.
(2.) THE facts lie in narrow compass and they are these : THE respondent no. 1 was suspended with effect from 12th of June, 1970 and was served with a charge sheet dated 28th of December, 1971, which contains five charges of misconduct against him. An enquiry was conducted in respect of these charges, to with charge Nos. 4 and 5. THE enquiry was conducted on 27th and 28th of February, 1974, and the enquiry officer submitted his report holding both the charges to be proved. THE Disciplinary Authority after obtaining the report, issued show cause notice proposing punishment of dismissal, and the workman gave reply to the proposed order of dismissal and was actually dismissed by the Disciplinary Authority vide letter dated 29th of June, 1974 (Annexure No. 4). A belated appeal was filed by the workman which was dismissed on Technical point. THEreafter, the workman filed a civil suit. It was also dismissed. THEreafter, the workman approached the conciliation officer on 25th of April, 1987, raising an industrial dispute, which was referred by the Central Government, under section 10 of the Act to the Industrial Tribunal. THE terms of the Reference was whether the management was justified in dismissing, the workman Sri R. C. Verma with effect from 29th of June, 1974, and to what relief the workman was entitled. Both the parties filed written statement and led the evidence and two issues were framed by the Tribunal on 6th of September, 1990, to the effect, "whether the departmental enquiry was not conducted fairly and properly' and 'whether the findings, confirmed by the Disciplinary Authority are perverse. Ultimately, only the second issue appears to have been decided. It was held that the resort of the enquiry officer cannot be assailed, but in view of the provisions of section 11-A of the Act, punishment of dismissal from service was deemed to be disproportionate to the misconduct proved on the basis of the charges nos. 4 and 5. The charge no. 4 was to the effect that the workman was in the habit of incurring excessive debt and charge no. 5 was to the effect that cheque dated 10th of August, 1970, for Rs. 65/- drawn by the workman was returned, unpaid on 11th of August, 1970, due to shortage of funds in the workman's saving bank account. Consequently, the impugned award was passed substituting the punishment of dismissal to the reinstatement with back wages and with addition to award censure entry in the Character Roll and withholding one increment of the workman. Against this award, the present petition has been filed. Sri S. N. Verma, learned senior counsel for the petitioner contended that inordinate delay in raising the industrial dispute by the workman can not be condoned and the Central Government was not justified in making reference after a lapse of several years from the date of dismissal from service and that the punishment of dismissal awarded to the workman was justified and proportionate to the misconduct, whereas the Tribunal exceeded its jurisdiction in substituting just withholding one increment with censure entry and reinstatement with back wages and awarding only subsistence allowance to be paid during the period the workman remain suspended. He leaned heavily on The Chief General Manager State Bank of India v. Kedar Nath Pandey, UP LB EC 1986 at p. 733.
(3.) LEARNED counsel for the respondents, on the other hand, urged that under section 10 of the Act, Central Government has unfettered administrative powers to make Reference provided an industrial dispute existed or was apprehended or the dispute involved any question of National importance Reliance was placed on Scooter India Limited, Lucknow v. Labour Court Lucknow, AIR 1989 SC 149 and M/s. Avon Service Production Agencies (P) Ltd. v. Industrial Tribunal, Haryana, AIR 1979 SC 170. Having scrutinized the submission of the learned counsel for the parties, short questions for determination are whether inaction in raising industrial dispute by the workman can be condoned and whether the Industrial Tribunal was not justified and substituting the lesser punishment of holding one increment with censure entry in the character Roll to the punishment of dismissal.;